Substantial Presence

Updated: Feb 22, 2019

Other than Eritrea and possibly now China, only the US taxes its citizens on their worldwide income. In other words, if a US citizen earns income anywhere else in the world, that income is subjected to both the other country's tax and the US federal income tax. The policy behind this system is that the benefits of US citizenship extend worldwide and US citizen can come back to the US and count on the US government for protection.

The lesser known side of this rule is that you do not need to be US citizen to be subjected to the world-wide taxation system. If you hold a green card or meet the "substantial presence" test, you too could be taxed on your worldwide income. Green card holders have similar rights to those of citizens. Thus, from the US government's perspective, they should be taxed like citizens. This applies even if the green card has expired.

The Calculation:

The substantial presence test is based on the number of days you spent in the United States. This number is very important to individuals who seek to avoid falling into the US tax trap (I mean system). The number of days is calculated as follows:

you were physically present in the US for 183 days or more during the current calendar year OR

you were in the US for at least 31 days during the current calendar year, AND

the sum of the days you were present in the US during the current calendar year, plus one-third of the days you were present in the US during the immediately preceding calendar year, plus one-sixth of the days you were present in the second preceding calendar year, is 183 days or more.

If you meet this 183 days requirement, the US will subject you to its worldwide taxation system. For example, let's say you spent 123 days a year in the US for the last 3 years. Under the first test, you do not qualify since 123 days is less than 183 days. However, there is still a second test.

2018: 123 days (the 31 day test is met)

2017: 123 days * (1/3) = 41

2016: 123 days * (1/6) = 20.5

123 + 41 + 20.5 = 184.5

Based on the second test, you have been in the US for 184.5 days, exceeding the 183 days threshold. Thus, in 2018 you will be subjected to US worldwide tax system. This is so important that many taxpayers that claim Puerto Rico's tax incentive diligently ensure they do not surpass the number of days they visit the US.

Counting the Days:

Generally, you are treated as being present in the United States on any day that you are physically present in the country at any time during the day. However, you don’t count the following days of presence in the United States for purposes of the substantial presence test.

Days you regularly commuted to work in the United States from a residence in Canada or Mexico.

Days you were in the United States for less than 24 hours when you were traveling between two places outside the United States.

Days you were temporarily in the United States as a regular crew member of a foreign vessel engaged in transportation between the United States and a foreign country or a possession of the United States unless you otherwise engaged in trade or business on such a day.

Days you were unable to leave the United States because of a medical condition or medical problem that arose while you were in the United States.

Days you were an exempt individual.

We recommend you keep detail records of your trips, especially the days you arrive and depart.

Exempt individuals:

The term “exempt individual” does not refer to someone exempt from the US taxation, but to anyone in the following categories who is exempt from counting days of physical presence in the US. If you are an exempt individual, you will need to file form 8843, Statement for Exempt Individuals and Individuals with a Medical Condition, with your US Federal Income tax return (1040NR). Exempt Individuals include:

a teacher or trainee temporarily present in the United States under a “J ” or “Q ” visa, who substantially complies with the requirements of the visa,

a student temporarily present in the United States under an “F, ” “J, ” “M, ” or “Q ” visa, who substantially complies with the requirements of the visa, and

a professional athlete temporarily in the United States to compete in a charitable sports event.

Be sure that no exception applies to your case that would prevent you from being able to exclude these days for the physical presence test. We recommend you seek professional advice should you have any questions regarding whether you will have a filing requirement. At Le Tax Law, PLLC, we'll be with you every step of the way.

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